ORDER NO. 168
YEAR 2025
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has issued the following
ORDER
in the judgment concerning a conflict of attribution between State powers, arising from the collegiate order issued by the Ordinary Court of Modena, Criminal Section, on September 13, 2024, initiated by the Senate of the Republic, with an appeal filed with the Registry on April 14, 2025, and registered under no. 4 of the register of conflicts between State powers for the year 2025, admissibility phase.
Heard in the deliberative chamber on October 6, 2025, the Reporting Judge Emanuela Navarretta;
Deliberated in the deliberative chamber on October 6, 2025.
Considering that, with the appeal filed on April 14, 2025 (conflicts reg. pot. no. 4 of 2025), the Senate of the Republic initiated a conflict of attribution between State powers against the Ordinary Court of Modena, Criminal Section, in relation to the measure adopted by the latter with the collegiate order of September 13, 2024;
that, by this measure, it was declared, *inter alia*, the admissibility for use of the video recordings made covertly, on July 12 and 19, 2014, as well as on October 18, 2014, by A. B., of the conversations held in person between the latter and the then Senator Carlo Amedeo Giovanardi, as well as between the latter and third parties;
that such measure was not preceded by the authorization of the Chamber to which the parliamentarian belonged, which, in the opinion of the appellant, causes an infringement of Article 68, third paragraph, of the Constitution, also in reference to Article 15 of the Constitution, as well as Articles 4 and 6 of Law No. 140 of June 20, 2003 (Provisions for the implementation of Article 68 of the Constitution and concerning criminal proceedings against high State officials);
that, regarding the facts, the Senate reports that the measure giving rise to the conflict was adopted within the scope of a legal proceeding initially brought against various investigated persons and which subsequently led to the separation of the trial against Carlo Amedeo Giovanardi, against whom two counts of indictment were brought: the first concerning the crimes of disclosure and use of official secrets and violence or threat against a political, administrative, or judicial body or its individual members; the second concerning the crimes of contempt of a public official and violence or threat against a public official;
that, as far as is relevant to the matter of the conflict, the appellant states that the video recordings, regarding whose acquisition and admissibility the dispute arises, were subject to seizure against the accused A. B.;
that the Court of Modena allegedly acquired them on November 2, 2021, disregarding objections of inadmissibility and inadmissibility raised, during the hearing of September 7, 2021, by the defense of Carlo Amedeo Giovanardi, who, at the time of the video recordings, was a Senator;
that the Senate's Elections and Parliamentary Immunities Board, on November 16, 2021, proposed to the Assembly to raise a conflict of attribution, to safeguard the prerogatives provided for by Article 68, third paragraph, of the Constitution;
that, however, the proposal was not examined by the Chamber, as it was "absorbed" by the Senate's decision, adopted by resolution on February 16, 2022, to recognize the non-justiciability, pursuant to Article 68, first paragraph, of the Constitution, regarding all the contested crimes;
that – as the appellant recalls – following this decision by the Senate, the Court of Modena raised a conflict of attribution between State powers, which was resolved by this Court with Judgment No. 218 of 2023;
that, with the latter, the Court declared the appeal inadmissible, limited to the crime of contempt of a public official, and founded regarding the other counts of indictment, declaring that it was not for the Senate to rule that such conduct constituted, under Article 68, first paragraph, of the Constitution, opinions expressed by a Member of Parliament in the exercise of their functions;
that, following the aforementioned decision of this Court, the proceedings against the former Senator Giovanardi resumed, and in that context, the issue concerning the admissibility of the video recordings acquired by the Court came back to prominence;
that, following some investigative supplements, the Board proposed to the Senate, with a decision adopted by majority on November 6, 2024, to raise a conflict of attribution, recognizing a violation of Article 68, third paragraph, of the Constitution;
that, according to the Board, the judicial authority had not requested authorization from the Senate for the use of the video recordings, containing conversations held between A. B. and the then Senator Giovanardi, as well as, by telephone connection, between the latter and other persons, conversations reported in documents following a seizure, similarly not preceded by any authorization;
that the Chamber accepted the Board's proposal with a resolution adopted by majority on December 4, 2024;
that, regarding admissibility, the appellant affirms the "evident existence" of the subjective and objective prerequisites;
that, in particular, the Senate deems its active legitimacy "certain," as the body competent to definitively declare the will regarding the authorization referred to in Article 68, third paragraph, of the Constitution, just as it deems unquestionable the passive legitimacy of the Court of Modena, which is a judicial body in a constitutionally guaranteed position of independence, competent to definitively declare the will of the power to which it belongs in the exercise of the functions attributed to it;
that, in the appellant's view, the prerequisites for admissibility also exist with regard to the objective aspect, since the violation of the sphere of attribution guaranteed to the Chambers by Article 68, third paragraph, of the Constitution, was determined by the failure of the judicial authority to request authorization from the competent Chamber to acquire and use conversations or communications, as well as to seize or in any case acquire correspondence or any other form of communication equated thereto by Article 15 of the Constitution [...];
that, on the merits, the appellant considers the reconstruction of the Court of Modena to be erroneous, according to which, due to the fact that the conversations between those present were recorded, the acts in question are excluded from the scope of protection under Articles 68, third paragraph, and 15 of the Constitution;
that, according to the appellant, this reconstruction is unfounded and illogical, as it would lead to the paradoxical outcome of "acquitting the conduct of a guest who, without the knowledge of the host and merely by virtue of having been invited into the house by the latter, not only video-records what is and happens in the host's domicile but also appropriates furnishings, trinkets, cutlery, and whatever else is present there";
that the appellant deems the wording of the current Article 68 of the Constitution (also supported by preparatory work) decisive on the merits, particularly the part that introduced the specification "in any form," referring to wiretaps subject to authorization;
that, moreover, telephone records, which also contain only data external to the communications, have already been included in the scope of application of Article 68, third paragraph, of the Constitution (this Court's Judgment No. 38 of 2019 is cited);
that the manner in which the video recordings were made would determine, in the opinion of the Senate's defense, the stabilization of the content of the conversations, making them accessible even after their exhaustion in presence;
that, in summary, the effect would not be dissimilar from that produced by "WhatsApp messaging," which, as reported by the appellant, this Court has already attributed to the notion of correspondence (Judgment No. 170 of 2023);
that, ultimately, the appellant complains that the Court of Modena, by the order of September 13, 2024, allegedly acquired and declared admissible the video recordings made by A. B., which constitute the "dual profile of 'wiretapping in any form of conversations or communications' and seizure of correspondence, including any other form of communication protected under Article 15 of the Constitution [...], thus causing an injury to the sphere of attribution constitutionally guaranteed to the Senate of the Republic."
Considering that, with the appeal indicated in the heading (conflicts reg. pot. no. 4 of 2025), the Senate of the Republic initiated a conflict of attribution between State powers against the Court of Modena, Criminal Section, in relation to the measure adopted by the latter with the collegiate order of September 13, 2024, by which, without authorization from the Chamber to which the parliamentarian belonged, it declared, *inter alia*, the admissibility for use of the video recordings covertly made, on July 12 and 19, 2014, as well as on October 18, 2014, by A. B., concerning conversations held in person between the latter and the then Senator Carlo Amedeo Giovanardi and, by telephone, between the latter and third parties;
that, in the appellant's view, this measure causes an infringement of Article 68, third paragraph, of the Constitution, also in reference to Article 15 of the Constitution, as well as Articles 4 and 6 of Law No. 140 of 2003;
that, in the present phase of the proceedings, this Court is called upon to rule, in the deliberative chamber and without adversarial proceedings, on the existence of the subjective and objective requirements prescribed by Article 37, first paragraph, of Law No. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), i.e., to decide whether the conflict arose between bodies competent to definitively declare the will of the power to which they belong and whether it concerns the delimitation of the sphere of attribution determined for the aforementioned powers by constitutional norms, leaving any further issue, including admissibility, reserved;
that, for the subjective aspect, the active legitimacy of the Senate of the Republic to initiate a conflict of attribution between State powers is to be recognized, as it is competent to definitively declare the will of the power it represents, in relation to the applicability of the prerogative under Article 68, third paragraph, of the Constitution (Orders No. 191 and No. 62 of 2023, No. 261 of 2022, No. 276 and No. 275 of 2008);
that, likewise, the passive legitimacy of the Court of Modena must be recognized, as a judicial body situated in a constitutionally guaranteed position of independence, competent to definitively declare, for the proceeding under its jurisdiction, the will of the power to which it belongs (Orders No. 191 and No. 62 of 2023, No. 69 of 2020 and No. 25 of 2013);
that, as regards the objective aspect, the appellant complains of the violation of its sphere of attribution, constitutionally guaranteed by Article 68, third paragraph, of the Constitution, which requires the authorization of the competent Chamber to subject members of Parliament to wiretapping, in any form, of conversations or communications, or to use them in judicial proceedings;
that, therefore, the subjective and objective requirements of a conflict whose resolution falls within the competence of this Court are met;
that, pursuant to Article 37, fourth paragraph, of Law No. 87 of 1953, notification to the Chamber of Deputies is also deemed appropriate, given the identity of the constitutional position of the two branches of Parliament regarding the fundamental issues to be addressed (among others, Orders No. 179 of 2023, No. 250 of 2022 and No. 91 of 2016).
FOR THESE REASONS
THE CONSTITUTIONAL COURT
1) declares admissible, pursuant to Article 37 of Law No. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), the appeal for conflict of attribution between State powers indicated in the heading, promoted by the Senate of the Republic against the Ordinary Court of Modena, Criminal Section;
2) orders:
a) that the Registry of this Court immediately communicate this Order to the Senate of the Republic;
b) that the appeal and this Order be served, by the appellant, upon the Ordinary Court of Modena, Criminal Section, and the Chamber of Deputies, within sixty days from the communication referred to in point a), to be subsequently filed, with proof of service, with the Registry of this Court within the thirty-day period provided for by Article 26, paragraph 3, of the Supplementary Rules for proceedings before the Constitutional Court.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 6, 2025.
Signed:
Giovanni AMOROSO, President
Emanuela NAVARRETTA, Rapporteur
Roberto MILANA, Registrar
Filed with the Registry on November 18, 2025
The anonymized version conforms, in text, to the original